Law and religion round-up – 19th February

A week dominated by THAT vote in Synod…

The week in Synod

The Rt Rev David Walker, Bishop of Manchester, prefaced the week with a tweet:

“For half term week the C of E sets up a special holiday club called Synod, where we try to play nicely with all the other girls and boys”.

Whether they did “play nicely” was not easy to discern; it was not in the media’s interest to report it as such, and we heard “Church of England gay marriage vote thrown into chaos” from the Daily Telegraph andChurch of England in turmoil as synod rejects report on same-sex relationships” from The Guardian. Furthermore, there were commentators on both sides of the argument who tried to put a post facto spin on the vote and talk up the result to align with their particular agenda.

However, the Archbishops of Canterbury and York were quick to send a letter to all Synod participants indicating the way forward, and in a post-Synod Tweet, David Walker said, “Yesterday’s debate showed #Synod at its best: passionate, courteous, and often moving. It helps us towards a different and better place”. In a balanced post On Synod, sexuality, and not ‘Taking note’, Ian Paul comments:

“It will not lead to a new report, since we cannot consider one on the same issue in the life of this Synod. It is difficult to see how the position of the bishops will change; if some break ranks, many will respond ‘Why didn’t you speak up earlier?’ It might lead to a fracture in the House of Bishops, as some clearly hope—which will mean dioceses diverging in their teaching and policies. If so, evangelicals will start to withdraw both cooperation and funding—so keep an eye out for the next diocese to run out of money. It has perhaps raised hopes for change again—which are likely to be dashed once more, at least in terms of formal change in the Church”.

Nevertheless, it should be remembered that against all expectations and faced with procedural problems, the Church managed to pull back from another recent “crisis”; i.e. that resulting from the vote against women bishops on 20 November 2012, which was followed by significant political and media pressure.

With regard to purely legal matters, Synod spent some time progressing developments in its legislation, which we reported here and here. This included, inter alia: approval of a motion moved by the Bishop of Leicester to request HM The Queen to create a new Suffragan See of Loughborough; but the rejection of the Revd Stephen Trott’s PMM which sought to end the legal requirement to read banns for couples intending to marry in a church service. (We are preparing a longer post on the development and future of the banns in marriage law within the countries of the UK.)

But apart from that…

… we did manage to find some hard law.

In Hickey v McGowan & Ors [2017] IESC 6, the Supreme Court of Ireland agreed with the High Court that the Marist Order was vicariously liable for sexual abuse carried out at a National School by one of its members and, in so doing, relied heavily on the judgment of our own Supreme Court in Catholic Child Welfare Society and Ors v Various Claimants & Ors [2012] UKSC 56.

On Thursday, AG Kokott published her Opinion in the Spanish case on State aids for religious organisations, Congregación de Escuelas Pías Provincia Betania v Ayuntamiento de Getafe C-74/16. She concluded, rather cautiously, that an exemption from the tax on building works under the 1979 Agreement between Spain and the Vatican did  not contravene the prohibition on State aid under Article 107(1) TFEU where the building was used for “the provision of education services in the context of its social, cultural and educational mission” [102]. But whether or not it did so in the instant case was for the domestic courts to determine on the facts.

No-fault divorce? Not any time soon

In answer to a written Question in the Lords from Lord Pendry (Lab), “To ask Her Majesty’s Government whether they have any plans to review the fault-based divorce system”, the Advocate General, Lord Keen of Elie, replied on 13 February as follows:

“The government is committed to improving the family justice system so separating couples can achieve the best possible outcomes for themselves and their families. Whilst we have no current plans to change the existing law on divorce, we are considering what further reforms to the family justice system may be needed.”

His answer came amid media reports of the case of Mrs Tini Owens, currently before the Court of Appeal. Mrs Owens is seeking the reversal of the ruling of the Family Court that she cannot divorce her husband on grounds of irretrievable breakdown of the marriage because the judge at first instance had preferred the version presented by her husband, who had defended the divorce petition. Crucially, the couple has not lived apart for the requisite five years that triggers the right of one partner to divorce without the consent of the other. According to the BBC, in the course of oral argument, Sir James Munby P said that “It is not a ground for divorce if you find yourself in a wretchedly unhappy marriage – people may say it should be.”

Defended divorces are now extremely rare; and the Court’s judgment will be extremely interesting, whichever way it goes. (In passing, it should be remembered that even though the answer in the Lords was given by the Government’s Scottish Law Officer, family law in Scotland is a devolved matter and the answer related to England & Wales.)

“Undue spiritual influence” again

We noticed an unexpected spike in page-views of our earlier posts on “undue spiritual influence” at elections, the most recent of which can be found here. Evidently, it was occasioned by allegations in The Sun that some Muslim voters in the Stoke-on-Trent Central by-election have received text messages telling them that it is their religious duty to vote for the  Labour candidate. The Liberal Democrats have called on the Labour Party to distance itself from that kind of religious interference.

How to address the clergy

Following Comments to the blog on recent Church of England Press Notices regarding how clergy should be styled, Peter Owen has directed us to a valuable on-line resource at Crockford’s How to Address the Clergy.

Quick links

  • Malcolm Brown, C of E Communications: Bishops, sexuality and the law: “the bishops are certainly finding out what it is like to be unpopular. And they are finding that being a focus of unity does not allow you to be loved by all the people all the time.”
  • Doug Gay, Chalmers Lectures 2017Lecture Three – Grand Designs: broader questions of institutional reform, the federal structure of the Church of Scotland as a whole and how it tries to keep an institutional balance across different levels of governance and organisation: Lectures One and Two are here and here.

And finally… I

St Valentine’s Day was the cue for media interest on the saint, but we were surprised to read the following tweet from the Parliamentary Archives…

… when, in fact, the 1856 provisions introduced a 21-day residency requirement which made it more difficult to marry there. We think they must have meant the Marriage Act 1753 (26 Geo. II. c. 33), aka Lord Hardwicke’s Act.

The BBC was on firmer ground, sending the Revd Kate Bottley to the Shrine of St Valentine, Whitefriar Street Church, Dublin and the reliquary containing “some of the remains of St Valentine”, rather than to the Umbrian steelworks town of Terni, which was his birthplace and is the location of other relics. However, this would have provided an excuse to travel further up the Valnerina to the attractive town of Narni, the inspiration for C S Lewis’s Narnia.

And finally… II

The BBC reported that former Sunderland striker Asamoah Gyan, a Ghanaian, is among a group of more than 40 players deemed to have “unethical hair” under United Arab Emirates Football Association guidelines. Unethical hair????

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